Letterhead Template

Sent via Electronic Mail July 6, 2009 Warren Coleman General Counsel Agency of Natural Resources Dear Warren: Conservation Law Foundation and its members throughout Vermont strongly urge you not to adopt the proposed Rule Governing the Establishment of All-Terrain Vehicle Uses Trails on State Land (“Rule”) that the Agency of Natural Resources (ANR) officially noticed for public comment on May 28, 2009. CLF opposes the Rule because it represent an abandonment of ANR’s longstanding tradition of sound public lands management that recognizes the fundamental incompatibility of recreational ATV trails with state wildlife management areas, forests, and parks. 1 CLF’s position is informed by its thorough analysis of ANR’s own files that clearly document the myriad environmental, economic, and law enforcement problems caused by recreational ATV use on state lands. This analysis, which is set forth more fully below, leads to several inescapable conclusions, but can best summarized by then-Commissioner Jonathan Wood’s own 2003 assessment: My Department also has serious concerns with any legislation that would authorize ATV use on state lands. There are many considerations and constraints that would need to be resolved. Some issues include our staffing limitations to implement and manage this intensive recreational use; the potential impacts to resources protected by statute; conflicts with ongoing approved In addition to the Comments offered herein and to the extent that they are consistent, CLF adopts and incorporates by reference the comments on this rule filed by the Center for Biological Diversity, the Noise Pollution Clearinghouse, The Sierra Club Vermont Chapter, the Vermont Natural Resources Council, and he Wilderness Society 1 CONSERVATION LAW FOUNDATION uses of state lands; and the widespread public concern over ATV activities. 2 There is no evidence whatsoever that the “considerations” and “constraints” cited by thenCommissioner Wood have been resolved by ANR to-date or will be resolved by enactment of this rule. In fact, the “staffing limitations” are as constraining today as they were in 2003 and will likely get worse as a result of the Administration’s ongoing job cuts at ANR. ANR’s own files also yield the following conclusions that militate strongly against expansion of ATV use to state wildlife management areas, forests, and parks • Construction and use of recreational ATV trails degrade water quality in nearby wetlands, rivers, streams, and lakes even when they are managed properly; repairing this damage is costly and takes time Proper management of ATV trails requires more money and staff time than all other types of trails, including snowmobile trails ATVs cause significant noise pollution that disturbs wildlife and other visitors to state land. ATVs create conflicts with and safety hazards for visitors to state lands Recreational ATV use can and has resulted in destruction and/or degradation of wildlife, wildlife habitat, and plants, especially rare, threatened and endangered species. ANR and VASA have been unable to curtail widespread illegal ATV use and the damage to the public resources it causes; there is no proof that allowing additional legal trails on state lands will solve this pressing problem ANR lacks the staffing resources to properly manage recreational ATV use on state lands • • • • • • In light of these factors and the analysis provided below, ANR should withdraw the proposed rule. I. THE PROPOSAL HAS NO BASIS IN SCIENCE Agency decisions that will affect the natural “resources protected by statute,” must be based on science. This rule should not be adopted because the Agency has utterly failed to demonstrate that it has conducted any contemporary scientific analysis of the rule’s predictably negative affect on the state’s statutorily protected natural resources. 2 Letter from Forest, Parks, and Recreation Commissioner Jonathan Wood to Michael Slater, Legislative Council. Sept. 30, 2003 CLF: “Protecting New England’s Environment” 2 -- CONSERVATION LAW FOUNDATION As is required by Vermont law, 1 V.S.A. § 838 (a)(8), the “Scientific Information Statement” that is part of the Rule package instructs the Agency proposing a rule to provide information as follows: In completing the Scientific Information Sheet, an agency shall provide a brief summary of the scientific information including reference to any scientific studies upon which the proposed rule is based, for the purpose of validity. The instructions further note that additional pages may be used if the form provides insufficient space for the Agency to explain the scientific basis for its rule. Here, however, the Agency’s explanation of the scientific information upon which it relied in formulating this rule is so scant that it does not even amount to an actual word, much less one single sentence. The Agency summed up its entire scientific basis for the rule with the following characters “N/A.” Of the two possible interpretations that could be ascribed to “N/A”—not applicable or not available—ANR leadership must believe—wrongly—that science is not applicable to this major shift in state land management policy that will result in impacts to natural “resources protected by statute.” CLF reaches this conclusion because there is no shortage of available scientific information of the impact of ATVs on the following types of natural resources that ANR is charged by statute to protect. In fact, the last time ANR considered opening state lands to ATVs it formed an interdisciplinary panel of Agency science and policy staff and commissioned a PhD at UVM’s School of Natural Resources to conduct a literature review on available science documenting the “Environmental and Social Effects of ATVs and ORVs: An Annotated Bibliography and Research Assessment.” The review of the scientific literature discussed the negative impacts of ATVs on “soil and vegetation,” “wildlife,” and “forests.” Among the many findings cited by the authors is that “ATV use has been found to widen and rut forest roads, and to increase the sediment load to streams which may threaten fisheries.” 3 After reviewing the report, ANR’s staff summed up its conclusions as follows: There is no environmental good news here. The studies described in this report paint a disturbing pattern of negative environmental impacts with few studies having neutral results and none having beneficial environmental outcomes. 4 Though the study is now nine years old, numerous field observations taken by ANR’s own staff in the intervening time period (discussed more fully below) confirm the findings discussed in the scientific literature. Moreover, the careful, science-based process followed by ANR when it considered and ultimately decided against opening state lands to ATVs in 2000 stands in stark contrast to the Agency’s process in bringing forth the current proposal and is an outright abandonment of past ANR staff recommendations that: 3 Stotkowski & LaPointe, “Environmental and Social Effects of ATVs and ORVs: An Annotated Bibliography and Research Assessment.” 2000 at p. 4 December 1, 2000 memorandum to ANR Board of State Land Stewardship through Ed Leary, Chair re “ATV Environmental Impacts Report.” CLF: “Protecting New England’s Environment” 3 -- CONSERVATION LAW FOUNDATION [R]estrictions regarding recreational ATV use on state lands should NOT be relaxed until additional research is conducted. Specifically, regional studies should be conducted that take into account the particular geography, climate. human use, and the land ownership patterns of the northeast including ATV’s impact on forest fragmentation, erosion and water quality, wildlife, air quality, and other recreational uses. Such research has yet to be conducted. State lands should not be available for recreational ATV use until such research is conducted that clearly demonstrates that the environmental and social impacts of ATV trails use are minimal and can be easily controlled. (Emphasis Added). 5 ANR leaders know full well that science is applicable to this rule and ANR’s failure to review, update, and analyze the science as part of this rulemaking renders the entire rule arbitrary. II. ADOPTION OF THE RULE WILL RESULT IN MORE DAMAGE TO THE WETLANDS, RIVERS, STREAMS, AND LAKES AND MORE TAXPAYER EXPENDITURES TO PREVENT AND REPAIR THAT DAMAGE ANR’s water quality division has long recognized that ATV use causes water pollution problems. In comments sent to the Governor’s ATV Collaborative from the Chief of ANR’s Water Quality Division’s Planning Section, the agency’s expert staff noted that ATV trails are generally in use all year round, creating erosion. Roadways across Vermont, be they for foot traffic or vehicle passage, are one of the single biggest sources of sediment to our streams due to the fact that exposed soil erodes many times faster than stable and vegetated areas. Sediment remains the single biggest source of impairments of Vermont’s streams. 6 Water pollution from eroded sediment is a serious problem because it harms fish and other aquatic organisms and also contributes to the phosphorus pollution that is destroying Lake Champlain. Given the Douglas Administration’s purported commitment to Lake Champlain through the Clean and Clear program, it makes no sense for ANR to enact a rule that will likely result in more sediment pollution to Vermont’s waterways. A. Numerous ANR field reports document the water pollution and degradation of water resources that recreational ATV use can have on the sensitive water resources ANR is required to protect under state and federal law. 5 6 Memorandum from ANR Lands Director Mike Fraysier to Commissioner Jonathan Wood. 11/4/2004 p.2 ANR Water Quality Division Comments on ATV Collaborative Document at 2. Nov. 8, 2004 CLF: “Protecting New England’s Environment” 4 -- CONSERVATION LAW FOUNDATION Here are just a few of the documented cases of water pollution and wetland destruction caused by ATV use: Wetland Degradation in the Arthur Davis Wildlife Management Area: “Due to ATV /4X4 use tons of material has been washed out of this unofficial trail/road over the years, a good amount ending up in a small (getting smaller)wetland. This road is a good example of the environmental problems associated with off-road sports and the expense that would be required to repair the environmental and infrastructure damage from allowing all season off-roading on public lands.” 7 Wetland Degradation in the Lower Connecticut River basin wetlands around Mill Pond in Windsor: “ATV use in the wetland is destroying vegetation, eroding soil and damaging buffers 8” Water quality degradation at Duck Pond in Sutton: “Summarize the threats to this lake and the evidence, which establishes the threat.” - “Increased irresponsible recreation is the main threat to Duck Pond. Illegal ATV use around the lake use seems common and was observed at the time of this assessment. There is an unnecessarily large access are with exposed sediment that is eroding into the lake. ATV roads extend beyond the access on three sides of Duck Pond, some within a few feet of the shore. There is an area to the south east of the pond that has been heavily disturbed. The beaver dam has been damaged and there is evidence of a recent drop in water level. There is much garbage, including food waste in and around the lake and in a fire pit. Near the access area, the water was more turbid than in the rest of the pond and the substrate was covered with fine silt. There were large, dense beds of Elodea nuttallii indicating sedimentation.” 9 Discharges of sediment and damage to the riparian zone of the Missisquoi River near Highgate: “Direct discharge of sediment due to erosion by excessive use by ATVs. Multiple tracks and ruts 2’ deep. I observed this in October 2005 and wrote about it. Visiting again last week revealed quite a bit more damage than in 05. Tracks and ruts go directly through several feeder streams. This is organized use but no trail maintenance. 10” B. ANR’s Economic Impact Statement is Incomplete because, among other reasons, it has failed to provide an honest accounting of the costs to taxpayers that result from ATV-related water pollution and wetland destruction 7 8 June 2004 “District I & II” Narrative p.1 November 21, 2006 Basin 10, 11, & 13 Weekly Report 9 2005 ANR Assessment of Duck Pond, Sutton VT. p. 6 10 Enforcement Complaint Report form District 6 filed on 9/11/2007 CLF: “Protecting New England’s Environment” 5 -- CONSERVATION LAW FOUNDATION These are only a few examples of the documented water quality problems caused by ATVs in Vermont. It is clear that this damage to public resources is often passed on to taxpayers who pay for the staff time, water quality evaluations, and remedial measures employed by ANR to clean up the messes made by ATV users. For example, the Bennington Banner recently reported that ATV riders continue to abuse riparian areas around Sucker Pond, ruining wetland habitat, polluting the water, dumping trash, and committing other acts of vandalism. 11. The newspaper report indicates that nearly $5000 in state and federal money, 12 some of which comes from the Clean and Clear program that is supposed to be focused on cleaning up Lake Champlain will be required to restore the damage. This is the second such publicly-funded attempt to clean up water pollution, restore near-shore habitat damage, and prevent illegal riding in that area in the last five years. ANR field experts have recognized that even legal trails would come at a higher cost to build, maintain, and police than other types of recreational trails. As one Forestry Technician explained: Unlike snowmobiles, which after snowmelt leave little or no sign of ground disturbance, 13 extensive ATV use has a major impact on soil stability leading to erosion. A system of regularly maintained log reinforced or belt type waterbars on any trails used by ATV’s might be acceptable. The problem would be the initial cost of installation as well as (and more importantly) the cost and time involved in adequate maintenance of said waterbars…Even with the most stringent anti-erosion structures in place, there would still be soil erosion over the course of the operating season. (Underlined emphasis in original; bolded emphasis added) 14 Similarly, another ANR Forestry District Manager expressed the following concerns that relate to water quality damage by ATV use and taxpayer-funded maintenance costs needed to repair said damage: 11 12 13 John Waller, Sucker pond project a poor use of resources? May 7, 2009 Id. Though there are obvious and important differences between the environmental impacts of recreational snowmobile trails, which are allowed on state lands, and recreational ATV trails, it is important to note that ANR’s experience with VAST and illegal snowmobile trails/demand for new legal trails has not always been positive. As several members of the Fish and Wildlife Department staff observed in a November 1, 2004 memo “Comments Regarding the ATV Collaborative Draft Report for Public Review,” the VAST model does not work perfectly when it comes to state lands. “In fact, department staff regularly encounters issues where snowmobile trails are created without Department permission and non-designated trails are used illegally. In addition, the Department spends a great deal of time working to address illegal snowmobile trail development as well as requests for new snowmobile trails.” Id. July 25, 2000 Memo from Forestry Technician to Brian Stone, Chief of Forest Management, VT ANR re District IV Contribution to the January 2001 Report to Legislature on ATV Trail Use 14 CLF: “Protecting New England’s Environment” 6 -- CONSERVATION LAW FOUNDATION The ATV use creates two deep wheel ruts that consequently funnel water, thus accelerating its velocity and causing erosion and loss of the travel way. Water bars have been destroyed further exacerbating the soil erosion. In the last three years we have been able to mend this damage via the timber sale and special money from Fish and Wildlife. Usually, it requires 10 to 18 hours of dozer time annually. (Emphasis added) 15 In light of these concerns, the Forestry District Manager acknowledged that “[t]he system would need to be policed regularly and often to enforce trail closure at mud seasons and at other times of soft trail conditions” and “[t]his system would need to be maintained continuously, more so than other recreational trails.” These well-founded concerns have cost implications that ANR has failed to properly document and grapple with during this rulemaking. ANR should provide Vermont taxpayers with an honest assessment of the costs we are already bearing as a result of water quality problems created by ATV use before it proposes to open state land to this destructive use. C. VASA and other ATV clubs encourage and celebrate irresponsible riding that degrades water quality The following photos (and those appended to these comments) were taken directly from VASA’s web site http://www.vtvasa.org/picture2.php, though they have since been removed after CLF called public attention to them. They highlight ATV riding that is destructive to wetlands and that creates and exacerbates water pollution from soil erosion. The first was labeled as the “2nd Place” winner in the “Action” category: July 26, 2000 Memo from Forest District Manager to Chief of Forest Management, Brian Stone re ATV Report 15 CLF: “Protecting New England’s Environment” 7 -- CONSERVATION LAW FOUNDATION CLF: “Protecting New England’s Environment” 8 -- CONSERVATION LAW FOUNDATION The picture above, also taken from VASA’s web site before it was removed by VASA after CLF called public attention to it, was labeled as BLRR Mudhole. III. ADOPTION OF THIS RULE WILL EXACERBATE EXISTING PROBLEMS WITH USER CONFLICTS AND SAFETY ISSUES FACED BY NONMOTORIZED USERS ON STATE LANDS. Research commissioned by ANR and the experience and professional judgment of its own land managers demonstrates that allowing ATVs on state lands will create conflict between ATV machine operators and non-motorized users and public safety problems for all. Already a problem on many state lands where illegal trails exist, conflict will only increase with the addition of new ATV trails. • ATV use is considered “inefficient” to the multiple-use concept because a single machine, through noise, dust and speed, can exclude all other recreationists from an area that could otherwise have been enjoyed by many. 16 • ATV use in multi-use recreational areas can result in the ISD (impairment, suppression, displacement) syndrome. Impairment refers to the decreased enjoyment of non-ATVers because of ATV impacts; suppression refers to reduced participation of the affected group; displacement refers to the final abandonment of a site as a result of sustained impact. 17 • In 2002, a Forest District Manager reported that on the Mississquoi Valley Rail Trail in Franklin County, “ATV use is considered a safety hazard to walkers and bikers as the offenders have been observed traveling at highway speeds.” 18 ATV use also created a safety issue for walkers and bikers in the Mud Creek Wildlife Management Area. 19 • In a 2004 internal memorandum, ANR staffers pointed out that “ATV use may be the only year-round activity proposed for state lands that effectively denigrates the recreational experience of other users.” 20 • Vermont residents, in a 2006 letter to state legislators regarding ATV use on the Lamoille Valley Rail Trail, note that, “the trail runs through backyards, farms, and Patricia A. Stokowski, Ph.D. & Christopher B. LaPointe, Environmental and Social Effects of ATVs and ORVs: An Annotated Bibliography and Research Assessment, University of Vermont School of Natural Resources, 2000, 20-23. 17 Id. 18 19 20 16 ATV Damage Reports from ANR Forest Districts, 2000-2002. Id. Memorandum from Tom Decker, Scott Darling, and John Austin, Barre Regional Office, Vermont Fish and Wildlife Department to Ron Regan and Craig McLaughlin, re: Comments Regarding the ATV Collaborative Draft Report for Public Review, November 1, 2004 at 1. CLF: “Protecting New England’s Environment” 9 -- CONSERVATION LAW FOUNDATION businesses, and creates a serious and very significant health hazard for these private citizens… [c]urfew and speed violations, as well as illegal riding off the trail into private property have been significantly documented.” 21 • Referring to the potential for opening up state lands to ATV use, one ANR staffer writes, “I am concerned that development of this piece of state land for ATV travel will open the door to more trails on other Wildlife Management Areas, State Parks, and State Forests. Illegal ATV trails are now a pervasive feature on public lands…In a majority of cases, ATV riding has a clearly negative impact on the natural resources we steward. This activity also precludes some other uses of these lands by members of the public.” 22 Presently, all Vermonters enjoy the same rights to use public land in a safe and responsible manner that does not place other users of state lands at risk or diminish the quality of their outdoor experience. The question presented by this rule is whether ATVs should be allowed on to state lands. ANR’s own experience as well as the experience of other public land managers across the country teaches that the pollution and safety hazards created by ATVs will undoubtedly diminish the quality of the experience currently enjoyed by all visitors to Vermont state lands—the vast majority of whom do not own ATVs or wish to use ATVs on state lands. For this reason alone, ANR should not move forward with the rule. IV. ATV USE ON STATE LANDS WILL HARM WILDLIFE AND ITS HABITAT Recreational ATV use can and has resulted in destruction and/or degradation of wildlife, wildlife habitat, and plants, especially rare, threatened and endangered species. The proposed rule jeopardizes the future of Vermont’s wildlife in four ways: • • • • It bypasses the state’s affirmative duty to protect threatened and endangered species, instead laying a foundation to increasingly jeopardize these species and their survival. It ignores the Agency of Natural Resource’s own science and policy that indicates the destructive effects of ATVs and the need to reduce ATV impacts on wildlife. It fails to provide a means for analysis of the cumulative impacts of new ATV trails to wildlife, their habitat, and their behavior and migration patterns. It threatens federal funding that supports the Department of Fish and Wildlife’s protection of wildlife habitat A. ANR is disregarding its duty to protect endangered species and fragile areas The Fragile Areas law and its implementing rule, 10 V.S.A. Ch. 158, requires the Secretary of Natural Resources to establish a register of fragile areas on state lands and adopt guidelines for Letter from Kate Scarlott and Rob McLeod to Sen. Susan Bartlett, Sen. Richard Mazza, Rep. Richard Westman, Rep. Martha Heath, and Sec. Dawn Terrill, July 14, 2006. 22 21 Email from Leif Richardson to Mike Wichrowski, RE: Clyde River Survey, June 27, 2008. CLF: “Protecting New10 England’s Environment” -- CONSERVATION LAW FOUNDATION the protection and maintenance of those areas. 23 An area must be listed as Fragile if it contains habitat essential for the protection and enhancement of any animal or plant species listed under the Vermont Endangered and Threatened Species List. 24 Additionally, ANR, as a state agency, has an affirmative duty to provide for the protection of the any state-owned property that is registered as a Fragile Area. 25 Yet despite the listing of several species known to exist on state lands, ANR has failed to list any additional lands on the Fragile Areas Registry. Instead ANR has proposed a rule that not only fails to consider the impacts to any existing fragile areas, but also opens up lands that should be designated as fragile, and the listed endangered and threatened species that inhabit them, to the damaging effects of ATVs. For example: • The timber rattlesnake (endangered), the eastern racer (threatened) and the eastern ratsnake (threatened), among other listed species, all have documented habitat or potential habitat on state lands in Vermont. 26 • In the Vermont Wildlife Action Plan, written by ANR, ATV use is listed as a habitat problem for all of these species. 27 • Control of ATV usage to “avoid impacts” is also listed as a Species Strategy for the spotted turtle, the wood turtle, the five-lined skink, the northern watersnake, the brown snake, the eastern ribbon snake, and the smooth green snake, indicating the potential for disturbance or habitat damage from ATV use to these species. 28 • The Plan notes that, for the eastern racer, “increasing ATV use in rural areas is a direct problem” in habitat protection. 29 • For the eastern rat snake, “increased ATV use in and near woodlands is known to cause mortality to snakes basking in trails.” 30 23 24 25 26 10 V.S.A. 6553(a). V.C.R. 12 020 003 at 14. 10 V.S.A. § 6555(2). The Narrows Wildlife Management Area Long Range Management Plan, Draft (2008), 46, 87. Chris Slesar and James S. Andrews, The Return of the Eastern Racer to Vermont; Successful Conservation through Proactive Project Development and Interagency Collaboration, Road Ecology Center eScholarship Repository John Muir Institute of the Environment University of California, Davis (2005). 27 28 29 30 Vermont’s Wildlife Action Plan (2005), Appendix 5, 73, 78, 105. Id at 46, 53, 69, 75, 80, 86, 92, 95, 97, 102, 107. Id. at 72-73. Id. at 78. CLF: “Protecting New11 England’s Environment” -- CONSERVATION LAW FOUNDATION Despite the serious risk presented by ATVs, these species have no protection. The new rule, as proposed, would allow more ATVs on to state lands and further jeopardize the survival of these threatened and endangered species. B. The proposed rule disregards ANR’s own science and policy, which express the need to protect wildlife from the destructive effects of ATV use. • In the Vermont Wildlife Action Plan, ATV use is listed as a problem for wildlife under the category of “Incompatible Recreation” for Northern Hardwood Forests and Spruce-Fir-Northern Hardwood Forests, 31 It also listed as a habitat problem for the Grasslands and Hedgerows habitat summary. 32 • Also listed as a problem is “human and motorized disturbance from new roads and trails in sensitive habitats (e.g., denning sites, breeding sites, feeding areas)” 33 • As one ANR staffer noted: “ATV use is year round. Can’t emphasize enough the difference between summer and winter for wildlife. By winter many juvenile animals are self sufficient or at least somewhat independent. Many are in torpor or hibernating, have migrated south, or use a small percentage of their summer home range. May through October is the critical season for courtship / reproduction and or raising young for the vast majority of Vermont species. Behavioral change due to frequent interruption of these activities by thousands of motor vehicles racing through the forest has much greater impact implications than snowmobiles using the same trails.” 34 • In 2004, a beaver pond on Groton State Forest land was damaged so heavily by ATV use that “it look[ed] like it was used for a race track with hundreds of ruts many knee to waist deep.” 35 • Habitat disturbance caused by ATVs is listed as an issue/concern for several listed plant species, including the stiff gentian, the green dragon, and the green violet, which has its only known habitat in New England in the Narrows Wildlife Management Area. 36 31 32 33 34 Vermont’s Wildlife Action Plan at 4:51. Vermont’s Wildlife Action Plan, Appendix B at B:25. Vermont’s Wildlife Action Plan at 4:51. Pittsford District Stewardship Team’s comments on the ATV Collaborative Draft Report for Public Review Convened by Governor Jim Douglas September 30, 2004 Email from Jeff Howard to Dave Williard, re: ATV Damage in Marshfield, November 2, 2004. The Narrows Wildlife Management Area Long Range Management Plan, Draft (2008) at 88. 35 36 CLF: “Protecting New12 England’s Environment” -- CONSERVATION LAW FOUNDATION • ANR’s own staff have pointed out that, in general, “wildlife populations are directly impacted by habitat loss and indirectly impacted by fragmentation and behavior due to noise” as a result of ATV use. Additionally, they note that Wildlife Management Areas (WMAs) are “managed primarily for wildlife habitat.” 37 C. The proposed rule fails to account for the cumulative impacts to wildlife and habitat that will result from an increase in ATV trails across the state. • The rule has no mechanism for analyzing impacts of multiple trails or very long trails on the fragmentation of wildlife habitat. • “All species require habitats of sufficient size to meet their life requirements. Habitat fragmentation reduces habitat block sizes and may affect the ability of an area to support particular wildlife species.” 38 • In the Vermont Wildlife Action Plan, “fragmentation of habitat by roads and ATV trails” is listed as a habitat problem for the threatened eastern ratsnake. The Plan points out that this snake needs “large habitat mosaics that are easily fragmented.” Any new ATV trails will be “barriers to safe movement between denning and foraging areas,” which are essential behavior patterns of the eastern ratsnake. 39 • A 2004 Memorandum from ANR staff to Jonathan Wood documented the fact that ATVs were using a wildlife passage structure, which was designed to “reestablish ecological links between habitat patches across the state,” resulting in the ineffectiveness of the passage to aid in the passage of wildlife across the state highway. 40 • The Secretary of Natural Resources has no intention of limiting the length or number of the ATV trails that could be approved under the proposed rule. 41 D. The rule jeopardizes federal funding for wildlife habitat conservation and management by allowing ATV use on Wildlife Management Areas that are Memorandum from Tom Decker, Scott Darling, and John Austin, Barre Regional Office, Vermont Fish and Wildlife Department to Ron Regan and Craig McLaughlin, re: Comments Regarding the ATV Collaborative Draft Report for Public Review, November 1, 2004 at 1. 38 39 40 41 37 Coolidge Mountain West Unit Long Range Management Plan, Final Draft, (2008), at 66. Vermont’s Wildlife Action Plan at 78. Memorandum from Wayne Laroche to Jonathan Wood, November 4, 2004. ANR Lands Stewardship Team, Meeting Minutes, April 20, 2009. CLF: “Protecting New13 England’s Environment” -- CONSERVATION LAW FOUNDATION supposed to be managed primarily for wildlife habitat and wildlifedependent recreation As proposed, the Rule authorizes building of ATV trails on all “public lands” without limitation. This broad authorization includes wildlife management areas even though use of such lands for recreational ATV trails is incompatible with the wildlife-focused purpose for which those lands were acquired by the State of Vermont—in many cases with the assistance of federal funding. In a memo to then-Commissioner Jonathan Wood, Fish and Wildlife Commissioner Wayne LaRoche warned that allowing recreational ATV use on Wildlife Management Areas could jeopardize badly-needed federal funding. The Vast majority of WMA’s were acquired with federal Wildlife Restoration dollars, matched by state license dollars from hunters, anglers, and trappers. The U.S. Fish and Wildlife Service has national policies pertaining to appropriate or allowable uses of lands purchased with federal participation. The default policy presumption is that any management action or decision must have a compelling habitat value and/or nexus in support of wildlife-dependent recreation. These standards suggest that ATV use should be expressly precluded. Violation of national policy standards could have substantive financial implications for the Department (e.g., federal determination of diversion of use and concomitant suspension of all federal receipts.) (Emphasis added). 42 It is clear from the analysis of negative ATV impacts on wildlife that ANR cannot demonstrate that the proposed rule allowing recreational ATV trails in Wildlife Management Areas will provide any “compelling habitat value and/or nexus in support of wildlife-dependent recreation.” At a time when funding for all aspects of state government is in dire straights, it is highly irresponsible for ANR to advance a rule that creates even greater risks that its funding from federal sources will be reduced. V. ANR LACKS ADEQUATE FUNDING AND STAFFING TO MANAGE EXPANDED ATV USE ON STATE LANDS WITHOUT SACRIFICING OTHER LEGALLY-REQUIRED FUNCTIONS AT THE CORE OF ITS MISSION In 2004, Fish and Wildlife Department Commissioner Wayne LaRoche sounded the following cautionary note regarding a proposal to allow recreational ATV trails on state lands: It is important to note that our Agency will, in fact, bear new responsibilities at a time when current, base, mission services are under-funded. For example, in addition to enforcement services, it November 10, 2004 Memorandum from Commissioner Wayne Laroche to Commissioner Jonathan Wood Re ATV Collaborative Draft for Public Review at 2 42 CLF: “Protecting New14 England’s Environment” -- CONSERVATION LAW FOUNDATION is likely my Department’s biological divisions will need to put forth considerable effort to review and comment on proposed trails. The current budget situation does not provide resources permitting my Department to undertake new tasks outside of our core mission. (Emphasis added) 43 Earlier in the same memo, Commissioner LaRoche observed that “[e]nforcement staffing will need to be adequate to preclude damage to state lands or ANR will be reacting regularly to damage from ATV use, both legal and illegal.” 44 Since Commissioner LaRoche issued this warning, the enforcement capacity of the Warden staff—the primary enforcers of ATV laws—has not increased at all. Moreover, in its 2006 report to the Fish and Wildlife Funding Task Force, ANR issued this stark assessment: “Presently warden coverage is not adequate to provide the service expected from the law enforcement division.” 45 At that time, the warden staff consisted of forty full time positions. 46 Based on a conversation with Fish and Wildlife Department General Counsel David Englander, CLF understands that the current Warden force is currently 39 full-time positions with several near-term retirements anticipated. Large-scale commercial illegal wildlife poaching and the importation of nonnative species of wildlife were just some of the problems identified in the 2006 report as a justification for additional resources within the Warden force. If left unchecked, these illegal activities at the core of the Warden Force’s law enforcement mission posed “serious ecological health risk to Vermont’s wildlife.” 47 In its most recent report to the Vermont Legislature, the Law Enforcement Division of the Fish and Wildlife Department wrote that “ATV enforcement has been an increasing challenge for State Game Wardens, whom provide the majority of all ATV enforcement throughout the state.” 48 Yet according to the most recent report, funding from ATV registration fees provided only a meager $30,000 to help cover that cost. 49 In fact, VASA’s own recent legislative proposals recognized the need for increased funding of ATV law enforcement. 50 In the current budget environment, the proposal received no action. 43 44 45 Id. at 2 Id. November 8, 2006 Memo from Tom Decker, ANR F&W Chief of Operations to J. Ehlers & J. Shallow, CoChairs Fish and Wildlife Dept. Funding Task Force at p. 5. Id. Id. Vermont Fish and Wildlife Law Enforcement Division Report 2007, prepared by Col. Rooks Id. 46 47 48 49 50 Attachment to Sept. 23, 2008 “2009 VASA Legislative Package” Email from Steve McLeod, VASA Public Policy and Outreach Consultant, to Jonathan Wood, ANR Secretary, et. Al. CLF: “Protecting New15 England’s Environment” -- CONSERVATION LAW FOUNDATION The staffing situation for other Divisions at ANR that would be impacted by the proposed rule is even direr. As Commissioner Laroche noted in his 2004 comments, “it is likely my Department’s biological divisions will need to put forth considerable effort to review and comment on proposed trails.” Given the impacts of ATVs on wildlife, it is not only likely that the Department’s biological divisions will need to put forth considerable effort to review trails proposed under this Rule—it is essential. It would be wholly irresponsible for ANR to allow trails to go forward without full consultation of and support from ANR’s own in-the-field experts. 51 The Wildlife Division at ANR F&W is heavily understaffed and under-funded. In the 2006 report to the Funding Task Force, ANR estimated that “[t]o fully meet program needs the Division needs 19 new positions.” 52 Those “program needs” included combating new invasive exotic species, mapping critical wildlife habitat such as deer yards and bear feeding areas, addressing the spread of new animal-borne diseases, and providing management assistance to municipalities and private landowners. In light of these pressing unmet or underserved needs at the core of the Fish and Wildlife Department’s mission, it makes no sense to divert valuable staff time to the review and comment on ATV recreational trails. VI. VASA AND ANR HAVE BEEN UNABLE TO CONTROL RAMPANT ILLEGAL ATV USE & THERE IS NO PROOF THAT THIS WILL CEASE WITH THE CREATION OF NEW LEGAL TRAILS. Illegal ATV use is rampant and increasing. Both VASA and Jonathan Wood, Secretary of Natural Resources, admit that they cannot control the problem. There is no evidence showing that opening more legal trails will decrease illegal use. Rather, there is evidence to the contrary: the more trails opened, the more ATVers will create new illegal spurs, presenting increased safety hazards, habitat and ecosystem destruction and fragmentation, and higher repair costs which fall on the residents of Vermont. A review of state records over the last 10 years yields consistent examples of rampant illegal and uncontrolled use of ATVs on state lands. For example: • The 2000-2002 Damage Reports from the forest districts contained numerous references to illegal use and the damages it caused, despite repeated attempts to keep ATVers off of state lands with warnings, tickets, signage and physical barriers. The report concluded that ATV use had been seen on “almost every parcel of state land, regardless of parcel One of the many reasons CLF is opposed to this rule allowing ATV trails on state land is its failure to include a formalized process by which ANR’s staff with substantive expertise in wildlife management, ecology, wetlands and water quality, and law enforcement give formal recommendations to the Secretary on whether to approve or deny a trail proposal. If ANR moves forward with a rule to open state lands to ATV use, it must ensure that only those trails receiving unanimous support of the Agency’s expert staff who review the proposals are allowed to go forward. 52 51 Nov. 8, 2006 Decker Memo at p. 6. CLF: “Protecting New16 England’s Environment” -- CONSERVATION LAW FOUNDATION size, ownership category or location,” and that forest district staff were “unable to keep signs that prohibit ATVs on gates, bulletin boards, or along hiking trails.” 53 • A 2004 internal email from ANR staff noted “permitting ATV use on one trail may lead to higher levels of illegal activity on adjacent trails. Barricades (gates, stones, ditches) do not work effectively to limit illegal AT activity on non-designated trails. On parcels where town roads or trails bisect the property, illegal use/damage of adjacent roads and trails is common. According to some federal land managers in New Hampshire where ATV use is permitted and the users financially support trail maintenance, damage from erosion is still rampant and impacts to trails significant (problems continue even after a Bureau of Trails has been established to police and maintain trails and monitor ATV clubs.” 54 In the 2005 Lake Assessment of Duck Pond, which is accessed from Willoughby State Forest, staff reported “illegal ATV traffic that detracted from the wilderness character of the lake. There was a lot of garbage, including burnt tires, rusted drums, beer bottles, clay pidgeons, shotgun shells, golf balls, corn cobs, etc in and around the lake. The access area was a large dirt patch with multiple tracks going up a few steep hills.” 55 In 2008, ANR staff reported that “there is Riley Bostwick WMA and at least two pieces of State Forest that run on the east ridge of Rochester and are being destroyed by atv’s [sic] and mud boggers. They have cut illegal roads along the ridgeline north of what is a legal trail on the Rochester Town Highway Map.” 56 In 2009, there have already been complaints to ANR regarding illegal use of ATVs on state lands. For example, on May 26, 2009, the Green Mountain Club reported illegal ATV use of the Beaver Meadow Trail in Mansfield State Forest. 57 • • • Both Secretary of Natural Resources Jonathan Wood and VASA acknowledge that illegal use is rampant. 58 As recent investigative reports show, and as even VASA acknowledges, despite hundreds of hours of patrolling, the state and VASA have been unable to control the creation of illegal spurs off of legal trails. 59 There is no proof showing that opening more legal trails will decrease the level of illegal use. The new rule will do nothing to curb this problem. Submitted on behalf of the Conservation Law Foundation by: ATV Damage Reports from ANR Forest Districts, 2000-2002 Email from ANR staff member Kim Royar to staff members John Austin and Scott Darling, November 2, 2004. 55 Duck Pond Lake Assessment, August 1, 2005. 56 Email from Keith Gallant to Kim Royar, July 4, 2008. 57 Email from Peter Antos-Ketcham, GMC, to Diana Frederick re: Beaver Meadow ATV report, May 26, 2009. 58 ATVs on public land subject of public hearing, June 15, 2009, http://www.vpr.net/news_detail/85165/. VASA also acknowledged illegal use in a 2005 news article on ATVs in national forests. “Ride or Wrong,” Seven Days, August 24-31, 2005, p32A. 59 “Whose View?”, The Burlington Free Press, June 7, 2009. 54 53 CLF: “Protecting New17 England’s Environment” -- CONSERVATION LAW FOUNDATION /s/ Anthony Iarrapino Clean Water and Healthy Forest Advocate /s/ Meriel Darzen Clean Water and Healthy Forest summer intern CLF: “Protecting New18 England’s Environment” --